South Dakota

ABA Model Rule 8.4(g) Efforts in South Dakota

Status of Action in South Dakota

June 2019
Status – The State Bar of South Dakota is considering ABA Model Rule 8.4(g).

On June 21, the State Bar of South Dakota voted to send the Rule 8.4(g) proposal to the South Dakota Supreme Court. CLS is hopeful there will be a comment period during which the South Dakota Supreme Court will accept comments from interested persons regarding the rule.

Earlier in the month, the State Bar of South Dakota, in its June 2019 Newsletter, which focused on the upcoming State Bar Convention, announced the 2019 Annual Meeting Proposals. Included in those proposals is a proposal from the State Bar Commission to add a new subsection to Rule 8.4 (Misconduct) of the South Dakota Rules of Professional Conduct.

Members of the South Dakota Bar will vote on the Bar Commission proposal at the 2019 South Dakota Bar Annual Meeting next week (June 19-21) in Rapid City, South Dakota. Specifically, the voting will take place on June 21, 2019 during the State Bar’s business meeting. The business meeting will be held in the Rushmore Room of the Ramkota Hotel and starts at 8:15 am Mountain Time. Voting will take place sometime after 8:30 AM and hopefully before 9:45 AM. If comments take more time than expected voting may take place after that time.

The proposed new subsection, which is a modified version of ABA Model Rule 8.4(g), would make it professional misconduct for a South Dakota lawyer to:

(g) Engage in harassing or discriminatory conduct by the known use of words or actions based upon race, sex, religion, national origin, disability, age, or sexual orientation when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others and that conduct is prejudicial to the administration of justice. This rule does not apply to legitimate advocacy when race, sex, religion, national origin, disability, age, or sexual orientation is an issue in any legal proceeding, action or forum where said counsel provides advice. This rule is not intended to prevent an attorney from declining to represent a client. A finding that a peremptory challenge is exercised in a biased or prejudicial fashion on any of the above-named reasons does not violate this rule. Any violation of the rule may be used solely for disciplinary proceedings and shall not form the basis of a private civil cause of action or a criminal or quasi-criminal complaint or charge.

While this proposed Rule 8.4(g) is narrower than the deeply flawed ABA Model Rule 8.4(g) - because the conduct it prohibits must be “prejudicial to the administration of justice,” a requirement not found in ABA Model Rule 8.4(g) - this is also why the proposed rule should be rejected. South Dakota Rules of Professional Conduct Rule 8.4(d) already makes it professional misconduct to engage in conduct “prejudicial to the administration of justice.” Furthermore, accompanying Rule 8.4(d), South Dakota has long had former ABA Comment [3], which further explains that:  

A lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule.

In addition to being redundant, the State Bar Commission proposal would add a black letter rule that raises similar constitutional problems to those ABA Model Rule 8.4(g) creates. Both target lawyers’ words and, under two Supreme Court decisions, both violate the First Amendment. In a 2018 opinion, the United States Supreme Court held that government restrictions on professionals’ speech – including lawyers’ professional speech – are generally subject to strict scrutiny because they are content-based speech restrictions and, therefore, presumptively unconstitutional. And in a 2017 opinion with obvious ramifications for regulatory attempts to penalize “harassing” speech, the Supreme Court unanimously struck down a longstanding federal statute because it allowed government officials to penalize “disparaging” speech and, therefore, was viewpoint discriminatory.

Equally problematic is that fact that several of the terms in State Bar Commission proposal are vague or undefined. What does “the known use of words” mean? “Engag[ing] in harassing or discriminatory conduct . . . when that conduct is directed to litigants, witnesses, lawyers, judges, court personnel, or others” is subject to discipline. But who are “others”? Does “others” mean other persons involved in court proceedings, or other persons outside of court proceedings? What is “legitimate advocacy”? What is “illegitimate advocacy”? Who decides? And is “legitimate advocacy” limited to the context of “counsel provid[ing] advice”?  Most importantly, the terms “harassing” and “discriminatory” are undefined, perhaps because ABA Model Rule 8.4(g)’s attempts at defining those terms have drawn heavy criticism.

Will South Dakota attorneys choose to follow Vermont’s lead and experiment with a version of ABA Model Rule 8.4(g)? Or will they choose to follow the lead of decision makers in ArizonaIdahoIllinois, LouisianaMinnesotaMontanaNevadaNorth DakotaSouth Carolina, Tennessee, and Texas and reject a problematic version of ABA Model Rule 8.4(g)?